While copyright lawsuits are common, some feel the steps needed to bring a copyright infringement lawsuit could use a little more clarification. The Supreme Court of the United States has agreed to hear Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, et al. and hopefully provide clarification on copyright infringement lawsuits.

Fourth Estate produces news articles online and licenses the articles to other news platforms. Once an account’s term is completed or terminated with Fourth Estate, the user is to take Fourth Estate’s content off their site. Wall-Street.com canceled their Fourth Estate account but did not remove Fourth Estate’s content from their site. Fourth Estate sued Wall-Street.com for copyright infringement. The district court held that since Fourth Estate’s works were not registered with the Copyright Office prior to the lawsuit they were not eligible to sue for a copyright infringement. The Court of Appeals affirmed. Fourth Estate appealed.

According to Section 411(a) of the Copyright Act “no civil action for infringement of the copyright in any United States work shall be instituted until” either “preregistration or registration of the copyright claim has been made in accordance with this title,” or “the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.” 17 U.S.C. § 411(a).

There are different interpretations of 17 U.S.C. § 411(a) among the Circuits. The Tenth and Eleventh Circuit follow the “registration” approach which maintains plaintiffs must already have a copyright certificate that has been issued by the Copyright Office or have documentation that the application was rejected by the Copyright Office in order to bring a copyright infringement lawsuit. The Ninth and Fifth Circuits, on the other hand, follow the “application” approach. This approach’s interpretation maintains that other than a filed application with the Copyright Office, there are no other requirements needed in order to begin infringement proceedings. Other Circuit Courts have ruled on these matters but have not committed to a specific approach.

The question presented to the Supreme Court is “whether a copyright owner may commence an infringement suit after delivering the proper deposit, application, and fee to the Copyright Office, but before the Register of Copyrights has acted on the application for registration.”

While both approaches, registration, and application, appear to satisfy the Copyright Act’s requirements, the Supreme Court’s ruling on this will provide clarification and set precedent for the lower courts.

Suiter Swantz IP is a full-service intellectual property law firm, based in Omaha, NE, serving all of Nebraska, Iowa, and South Dakota. If you have any intellectual property questions or need assistance with any patent, trademark, or copyright matters and would like to speak with one of our patent attorneys, please contact us.

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